THE TIMES asked readers recently “Is libel dead?” The number of defamation writs issued in British courts last year was about an eighth of the 457 writs 10 years earlier.

The downward trends are similar in other Western jurisdictions such as Australia and North America, suggesting those who willingly stand in the public eye are becoming thicker-skinned in withstanding the decade’s avalanche of media forms.

Or perhaps the media are more careful about who they traduce, and how.

But one place where libel remains a legal growth industry is in a tiny country desperate to become part of the developed world: among the sensitive political and business petals of Singapore. As Rupert Murdoch is himself finding out.

That is because of a long-running case concerning Singapore’s premier political family, the Lees; a case Murdoch’s News Corporation inherited via its recently completed $US6 billion ($6.8 billion) purchase of Dow Jones.

The Lees have a long history of libel stoushes with foreign media, battles they have never lost when heard in Singapore’s own courts, which grants them damages payouts that set world records. The (pre-Murdoch) Asian Wall Street Journal, Time, The International Herald Tribune, Businessweek, Bloomberg and the Financial Times are among other international names respected for their accuracy and authority that have been hit with the Lees’ libel broadsides. And lost.

The Lees have used similar tactics in seeking to silence political opponents.

Remarks that might be regarded as just part of the rough-and-tumble of competitive political or business culture in Australia often head to the libel courts when aired in Singapore.

However, it is one-way traffic. Opponents have never won an action against the Lees. Singapore is in effect a one-party state, and that party is the Lee party.

Such is the presumption of a libel loss that most media companies now do not even take the fight to trial, instead promptly settling. They know that history says they will not win, and management usually decides that a quick settlement limits expensive legal bills – and possible even higher damages when Lee lawyers insist mid-trial that publicly heard evidence has further harmed sensitive reputations, which prevents airing of issues that may be germane to the case.

It is not just the media. In 2001 what seemed to many bankers to be a normal tactical paper was prepared by Goldman Sachs on behalf of its local client DBS Bank. Goldman-DBS criticised the merits of a rival bid for a bank DBS was seeking to take over.

Target and rival were miffed, complaining to the central bank, and each board soon pocketed $US1 million in damages from DBS, which did not get the deal.

But Lees’s lawyers saw a reputational attack and sued the Review on behalf of Lee Kuan Yew and Lee Hsien Loong.

But on this occasion the magazine refused to roll over and settle. Much to Singaporean annoyance, the offending article remains posted on the Review website (alongside a link to human rights press awards). There are front-page pointers to all legal exchanges on the matter and an editor’s letter explaining why the Review is taking the battle to the Lees.

The Review’s arguments are mostly about transparency and the rule of law, the very principles on which Singapore prides itself but many say does not practise with quite the gusto it claims.

It is a case that poses particular issues for all protagonists.

It will be the first time News and the Lees have crossed swords in a libel matter, which has become a perverse kind of rite of passage for other international media proprietors.

The Lees have been the dominant political family in Singapore since the 1950s, about the same time Murdoch has been in charge of News Corp. Both have helped build institutions about the same size; News Corp’s market worth approaches $US100 billion, Singapore’s GDP a bit bigger. Both are expert at projecting power, and neither brook any challenge to their authority.

The Review had argued, pre-Murdoch, that since it did not have an office or staff in Singapore, it should not be subject to Singapore law.

It wanted the matter heard in Hong Kong, where it is based, and where it feels it would get a fairer hearing. The Lees have never won a case outside Singapore.

In a letter to Singapore’s Information Ministry, which has sought a bond from the Review in lieu of presumed damages and Singaporean jurisdiction over the Review, Dow Jones’s lawyers argue “its imposition on the Review, merely for the sake of making it easier for senior ministers of the Singapore Government to recover personal damages in a libel action, would be deeply regretted by all who care for the rule of law in your country.

“It is an exorbitant and unlawful demand that even totalitarian states have never sought to impose on media.”

And that is the way the matter has largely stayed since mid-2006, largely an exchange of testy lawyers’ letters as Singapore throws out the Review’s effort to end the action in Singapore.

But then came Murdoch’s successful bid for Dow Jones last year. The management that previously backed the Review’s feistier approach to Singapore no longer runs the company, after Murdoch put in a new team.

The status of the case is unclear. Outwardly, it seems as if nothing has changed, and a Murdoch-owned Review is still taking on the Singaporeans. The articles and letters remain posted at the Review.com and the Review editors say it is still alive, referring the matter to Dow Jones lawyers, who do not respond.

The matter is pregnant with the notion of what constitutes credibility – Singapore’s own sense of it and News’s in the court of public opinion after the reputational shellacking it received en route to the Dow Jones win.

Singapore’s legal system is also under scrutiny. The US embassy in Singapore has frequently expressed concern about “the ruling party’s use of the court system to intimidate political opponents”. The Australian lawyer Stuart Littlemore, who has observed Singapore libel cases for the International Commission of Jurists, says “the Singapore leadership has a long-standing record of using the High Court as a mechanism for silencing its opponents – by suing them for statements that, in any comparable jurisdiction, would be seen as part of a robust political debate inseparable from democratic freedoms, and by being awarded such unconscionably high damages and costs as to bankrupt the defendants, forcing them out of parliament”.

Credibility was at the heart of the Murdoch bid for Dow Jones. There were numerous critics of his Dow Jones tilt – notably in its own newsrooms, and including some members of the publisher’s controlling Bancroft family (which quickly put aside its gripes in accepting News’s generous offer). The critics said Murdoch and News had insufficient credibility to be custodians of venerable media assets like The Wall Street Journal and The Far Eastern Economic Review.

News Corporation prevailed after a searing battle in which Murdoch’s personal and corporate reputation was assailed, almost to the point of him pulling out. Murdoch himself said bitterly that he was treated like a “genocidal tyrant”.

A significant aspect of the appeal of Dow Jones to Murdoch is its under-played assets in booming Asia, a region where Singapore interests are hugely influential, both politically and commercially, and where Murdoch thinks he can add much value absorbing Dow Jones into the rest of the News empire.

But just as Murdoch has been cited as providing the type of media Asia does not want, notably by China, wealthy Singapore is often cited as a regional development model, particularly in effective one-party states like China and through Central Asia.

It is an important, if sometimes self-serving, voice in the so-called Asian Values debate.

Unlike many of his competitors, Murdoch’s titles have never experienced a Singapore libel action. The city-state has rather been seen by News as a place to raise money and do business – notably in 2001 when Murdoch briefly entered a joint venture with Singapore’s state-owned telecom (then run by a son of Lee Kuan Yew) in an unsuccessful bid for Hong Kong’s leading telecom.

But with this libel headache now on Murdoch’s desk, Singapore faces a media company run by a dominant individual who is an archly pragmatic dealmaker when it suits him. That could mean wiggle room for legal negotiation except that, with libel, the Lees famously are not much for turning. Absolute victory is their goal. It will be fascinating to see how the battle plays out, mindful of the messages it could send around a democratising region where state control of media is evolving and where libel clearly is not yet dead.

A climate of fear that stops citizens from speaking out against the government could eventually lead to the decline of Singapore, novelist Catherine Lim says.

Lim, Singapore’s best-known writer, praised the government for its economic achievements but said its Achilles’ heel could be its suppression of criticism, such as defamation suits against opposition politicians and bans on protests.

“A compliant, fearful population that has never learnt to be politically savvy could spell the doom of Singapore,” Lim told Reuters in an interview.

Lim, 65, is one of few dissident voices in Singapore and has criticised the government in opinion pieces in the local press.

She said the worst-case scenario would be for a future leader to get away with corruption “because of the ingrained, unquestioning trust of a fearful, overly dependent people”.

Another factor is that the current generation of young people are exposed to views from around the world and discussion on political freedoms on the internet, she said. Her latest article has generated a string of comments in Singapore’s active political blogging community.

“You could have a case of younger Singaporeans creating unrest because they do not have an outlet,” she said.

Lim also argues that the tight political control could hurt Singapore’s aim of attracting the talent needed to retool its economy from manufacturing to a hub for research and services.

“What Singapore wants is managed creativity. So not only would those really creative people not want to come, but those who are here want to get out,” she said.

Lim, whose works include The Bondmaid, said Singaporeans had been conditioned to believe that material prosperity and messy politics were mutually exclusive, but she pointed to Scandinavia as evidence that this is not the case.

“Singapore needs to develop our own model of political freedom and Singapore has the maturity, expertise and institutions to move forward,” she said.

Lim’s thesis is that the Singapore government has instead made “systematic use of fear” to silence dissident voices, through “out-of-bounds markers” to stipulate what Singaporeans can and cannot say should they choose to criticise the government.

She points to examples of people not voting for opposition parties for fear of losing their homes, promotions or jobs, and defamation lawsuits that can result in permanent financial ruin.

Singapore’s leaders have filed and won numerous libel suits against opposition politicians and foreign media organisations, saying this is necessary to protect their reputations.

The Home Affairs Ministry did not respond to a Reuters request for comment on Lim’s statement.

In a 2005 newspaper interview, Home Affairs Minister Wong Kan Seng denied that there was a climate of fear in Singapore, and said that its citizens had spoken up at public forums without reprisals.

The People’s Action Party has ruled Singapore since it separated from Malaysia in 1965, shunning what it has termed “Western-style” adversarial politics.

The city-state’s founding father, Lee Kuan Yew, still holds an influential position in the cabinet of his son, current Prime Minister Lee Hsien Loong.

“The Lee Kuan Yew model was superb for its time. But it may collapse, not immediately, but 20 years down the road,” Lim said.

In recent years, Singapore has attempted to shed its conservative image and tried to generate “buzz” by introducing casinos, promoting its arts and education scene, and hosting a Formula One race next year.

In October, the city-state legalised oral and anal sex between consenting adults, although it kept a ban on gay sex, after a rare debate on the issue in parliament.

“They seem to have drawn a line when it comes to opening up politically, and that to me is dangerous,” Lim said.

But Lim said she does not intend to enter the political sphere to push for the changes she advocates.

The two lawyers will be at the Law Society office on South Bridge Road together with members of SgHumanRights at 2 pm tomorrow to present the petition.

Singapore’s Law Society has remained conspicuously quiet on Human rights Day. It also continues to shy away from engaging the PAP Government on rule of law issues even though the abuse of Executive power has been rampant.

Today we mark the Human Rights Day along with Lawyers and Bar Associations around the world that affectionately include the Malaysian Bar Council.

We record with dismay that Human Rights Day is a non-event to our Law Society. We earnestly hope that along with the Law Society’s major events like the Dinner and Dance, and Bench Bar Games, Human Rights Day will find its way into our calendar in the coming years.

On this day, we call upon the Law Society of Singapore to stand firmly on our mission to uphold the Rule of Law in maintaining a strong and independent Bar as contained in our mission statement published on our website.

It has been twenty years since the Legal Profession Act was amended by the state to muzzle the Law Society from commenting on existing and proposed legislation, unless its views were expressly solicited. This oppressive legislation not only stifles the Law Society from making an active contribution to the law making process but also takes away our vital role as a vanguard of rights of the people. It is time that we broke this 20 year silence in speaking up for our rights to speak up.

Given our close affiliation to the Malaysian Bar Council, we would like to urge the Law Society to stand in solidarity in their courageous fight for the rule of law in Malaysia and in this spirit denounce the recent arrest of the lawyers.

We therefore mark this Human Rights Day in calling upon the Law Society of Singapore to:

1. Campaign for the repeal of the section in the Legal Profession Act which prevents the Law Society from speaking on existing or proposed legislation;

2. Look into ways to strengthen the Independence of the Judiciary especially at the Subordinate Courts;

3. Set up a sub-committee on human rights under the Law Society and conduct human rights training for lawyers;

4. Submit an annual report on human rights violations in Singapore to the Human Rights Institute of the International Bar Association (IBA) and follow up on issues pertaining to the Rule of Law raised at the recent IBA 2007 Conference;

5. Establishment of a Judicial complaints mechanism in addressing complaints by lawyers and the public on any misbehaviour by Judges and Legal Officers from the Attorney-General’s Chambers.

2. I am filing this AEIC on my own behalf and on behalf of Defendants No. 1 (Singapore Democratic Party) and No. 2 (Chee Siok Chin).

3. The Plaintiffs were awarded summary judgment in a hearing where our counsel was not present as he was ill.

4. In the first place we do not accept the summary judgment handed down by the Courts. Despite the fact that we had filed our defence showing that there were triable issues and disputes of facts, Judge Belinda Ang awarded summary judgment to the plaintiffs.

5. This meant that there was no trial and the defendants were not afforded the opportunity to call our witnesses, cross-examine the plaintiffs, and conduct our defence in open court.

6. This is a travesty of justice.

7. Any claim for damages must be backed up by an assessment of the plaintiffs’ reputation. The question is to find a independent and unbiased assessment of these reputations.

The media

8. To be sure the plaintiffs’ reputations have been built up on the backs of a controlled and subservient media. The media would sing their praises leading everyone to conclude that their reputation is sterling.

9. There is little coverage and analysis of the political machinations of the plaintiffs by Singapore’s media.

10. In other words: self-praise is no praise.

11. The foreign media, that is, those that do not circulate in Singapore and hence out of the punitive reach of the plaintiffs, hold a much more critical view.

In court

12. In the legal realm, Lee Kuan Yew had sued the late Devan Nair in Canada in 1999 for defamation over an article entitled “Singapore Sage” published in the Globe and Mail, a Canadian newspaper.

13. Nair countersued, claiming damages for the tort of abuse of process.

14. Lee Kuan Yew applied for an order to strike out Nair’s counterclaim, saying that Nair’s counterclaim was “scandalous, vexatious or an abuse of process of the Court.”

16. This is another indication that there is no freedom of expression in Singapore which lends weight to the argument that the plaintiffs’ reputations have been inflated by the Lees themselves.

International opinion

17. Several international groups such as Amnesty International, Freedom House, Reporters Without Borders, Human Rights Watch, National Endowment for Democracy, Council for a Community of Democracy, Lawyers Rights Watch Canada, International Commission of Jurists, Human Rights First, and the US State Department have criticised the Singapore Government, headed by the plaintiffs, for not respecting the freedom of expression in Singapore.

18. This again supports the defendants’ argument that the reputations of the plaintiffs are not what the Lees claim them to be. They must also be seen in the context of the lack of freedom of expression in Singapore which curtails criticism, as well as the publication of such criticism, of the Lees.

Views of the layperson

19. On the other hand the Internet, especially the online forums where the Government has little control over discussions, are rife with robust criticism of the plaintiffs.

20. This is an illustration of what the layperson thinks given an independent and free forum.

Elections

21. Another way that the plaintiffs’ reputations are assessed is through general elections.

22. With the elections system, in the words of Lee Kuan Yew, “engineered” to ensure a PAP victory, is it any wonder that the Lees continue to be re-elected at every election? (See Exhibit collectively marked CSJ-1)

23. Lee Kuan Yew has indicated that the one-man-one-vote system has to be changed if necessary.

24. Lee Hsien Loong has said that if there are more opposition members of parliament, he, as prime minister, will have to “fix” the opposition and “buy” support (See Exhibit collectively marked CSJ-1)

25. The Elections Department which conducts elections is supervised by the Prime Minister’s Office.

Conclusion

26. The reputations of the plaintiffs must be assessed by looking at the entire spectrum of views, not just a selective and highly skewed picture promulgated by the Singapore Press Holdings, Media Corp and the election system.

27. Only when such a comprehensive vantage is considered can an accurate and unbiased assessment of their reputations be made.

Sworn in Singapore this
20th day of November 2007
Before A COMMISSIONER FOR OATHS

by Sylvia Lim,
Non-Constituency Member of Parliament
Chairman,Workers’ Party

Assessment of situation in Singapore

Certainly, Singapore’s priority has always been economic development. This must always be important as a government goal, for with growth will come, we hope, improvement to people’s lives. We have all seen how the lack of economic development in Myanmar brings severe misery and finally, social unrest.

In its bid to make Singapore a business-friendly place, resources are poured into making Singapore politically stable, and strengthening dispute resolution mechanisms. In surveys of expatriates already quoted to you by our leaders, our legal system tends to be ranked very highly. I have no doubt that the qualifications of our judges and lawyers, and the efficiency of the courts, can meet any international benchmarks. Hence, businesses generally know that any dispute which comes before the courts will be dealt with quickly and in a reasoned way.

However, when one delves deeper into the issue of the quality of justice, there will be areas for improvement. One is the area of criminal justice, where Singapore, like all countries, faces the tension between crime control and due process. Singapore leans much towards the crime control model and has made compromises to due process. For instance, we have very strict drug laws here. Under the Misuse of Drugs Act, there are presumptions of fact which the prosecution can rely on, which shift the burden of proof to the Defendant to rebut the presumptions. Speaking as a former defence counsel, it is not easy to rebut the presumption, especially since the accused person is usually in custody and the evidence he needs may be abroad. Our Constitution provides for an arrested person to be allowed to see his lawyer as soon as possible after arrest; yet as a result of case law, the Defendant will only be able to see his lawyer if the police feels it will not jeopardize their investigations, which could be several weeks later depending on the nature of the case. As one prepares for trial, there is no obligation for the prosecution to disclose evidence it has obtained but is not using, which could be very useful to the Defendant. I suppose if you were raising a young family here, such procedures may comfort you, but if your child were a suspect in a case, your experience would be quite different.

What about government power? How far can Parliament serve as a check on the executive government?

We inherited the Westminster system from London. Unlike the United States where the Executive and Legislature are distinct arms, the Westminster model requires the Cabinet to be drawn from the Legislature i.e. from Members of Parliament. Yet, even though we have common roots, the balance here is tilted much more in favour of the executive government. Why?

One reason is obviously the overwhelming dominance of the ruling party in Parliament, holding all but 2 elected seats, and that the party whip was lifted only on a handful of occasions in the last 40 years. Hence, if any matter is put to a vote, the executive government’s plans will prevail. Defenders of the system will say that this is the people’s choice, to re-elect the ruling party overwhelmingly. Again, delve deeper and one sees that there are walkovers in many constituencies due to lack of opposition candidates, but that’s for a political seminar, not for today. Much as I desire political reforms, I think we still need to respect the outcome of the elections and push for change within the limits of the law.

At this point I should say that conferences such as these are very useful for us to benchmark ourselves against international practices, but finally we Singaporeans can decide for ourselves what kind of country we want.

One aspect of the rule of good law is freedom of information. This is another key difference between London and Singapore. Both structural and cultural factors are at play. We see in Britain laws requiring government declassification of official information, and the formation of boards of trustees as watchdogs over media companies to ensure that the public gets balanced information. In Singapore, more information is classified and the mass media is not subject to any oversight by a body protecting the public right to information. In Britain, there would be an outcry if someone formerly from the intelligence services or a former Cabinet Minister was put in charge of a media company. In Singapore, this is not unusual.

However, one media watchdog which has evolved naturally is the Internet community. It is now much harder for people to spin propaganda if alternative versions / leaks spring up online. In Singapore, we have clearly seen the effect of the Internet as empowering and forcing disclosure of more information of public interest. For instance, in the last Parliamentary elections here, the internet community took it upon itself to propagate news not carried in the mainstream media, particularly opposition news. We now also see the government using the mainstream media to address rumours or discussions arising from Internet discourse. I believe this ground-up development is very important and empowering for our citizens.

The last 2 aspects I would like to touch on are access to legal redress and the role of lawyers to promote the rule of law.

Regarding access to legal redress, there is the issue of the cost of legal counsel. This is not a criticism of lawyers but a fact of life. Here there is state-funded legal aid to a limited extent. For civil cases, the income ceiling is low and there are many who are above the ceiling who would still find lawyers very expensive. For criminal cases, the State funds the defence only in cases involving the death penalty. In non-capital cases, it falls on the voluntary scheme of the Law Society to provide aid.

One cultural impediment is that it is not common to find people suing the government especially the police. First, awareness of the limits of State power is generally low e.g. not many people know that the police can only keep someone for 48 hrs without producing them in court. Secondly, there are the rules of evidential privilege and official confidence which restrict discovery of official documents. Finally, the consequence of losing the case and paying legal costs to the government is a concern. Such a lack of challenge to the government is not good, as it may lead to our government officers becoming complacent.

Finally, let me say something about the role of lawyers. Under the Legal Profession Act here, the Law Society Council’s role is to take charge of matters concerning the practice of law. The Act also says the Law Society can comment on any other matters submitted to it. It has been said that this means that the Council should not comment on legislation that does not touch on the practice of law directly. I find this to be an unnecessary restriction on the Law Society whose members have much to offer on any laws or policies which it considers undesirable because of inherent unfairness, lack of due process, and being prone to abuse of power. I do not know how active your professional organizations are in your countries, but I am sure lawyers can add tremendous value on rule of law concerns even in areas not touching the practice of law. Indeed, each of us has a duty to do so.

It is unfortunate that the Workers’ Party Chairman Sylvia Lim feels that Singapore can deal with rule of law issues without support from the international community.

If that were the case, then why did Mr Chia Thye Poh remain detained without trial for 32 long years?

Ms Lim says that: “We Singaporeans are quite capable of deciding what kind of country we want.”

By logical extension, did Singaporeans want Mr Chia Thye Poh’s three-decade detention? Did Singaporeans want the media to be completely under the thumb of the PAP? Did the people support the manipulation of the electoral process?

The truth is that Singaporeans, while wanting to decide what kind of country we want for ourselves, have been unable to do so because our rights, including our right to free and fair elections have been crushed by the PAP.

It is therefore disappointing that as an opposition leader, Ms Lim feels that the election system is acceptable and that the outcome must be respected. We may not be able to do anything to change the election outcome but we do not have to respect it.

We need to fight to win back these rights and we need to change our political system. In short, we need reform.

To be very sure, only Singaporeans can effect that change. But let us not fantasize. We also need support from the democratic world as Taiwan, Indonesia, the Philippines, South Africa, Poland, Serbia, Chile, etc. needed it. And as Burma now desperately needs it.

On this matter, isn’t it a trifle hypocritical for us to condemn the regime in Burma and call for democratic change there while in the next breath call on others to stop interfering in our own affairs?

It is true that the PAP says it doesn’t want foreign interference. It is also a lie. What do you call the National Wages Council having American, German and Japanese business representatives sitting on its board deciding the wage levels of Singaporean workers?

If we shun foreign interference, why did the Singapore Government invite the IBA here. Shouldn’t the Government have taken the IBA president to task for saying that Singapore has an “outstanding legal profession and judiciary?”

The truth is not that the PAP does not want foreigners interfering in our domestic affairs. Comments from foreigners, be they compliments or criticisms, are consider interference. While the PAP welcomes the former, it rejects the latter.

In a similar vein, Ms Lim accepts the accolades of the legal/judicial system of business groups. What is troubling is that she ignores studied criticisms of legal watchdog organizations such as Lawyers Rights Watch Canada, New York City Bar Association and the International Commission Jurists.

Does she consider these researched but critical reports “foreign interference” while welcoming the complimentary surveys of organisations cited by Mr Lee Kuan Yew?

In order for Singaporeans to decide what we really want for our country, we need an election system that is free and fair, a media that is not controlled by the ruling party, and the freedom of speech and peaceful assembly.

None of these institutions exist in Singapore. Without them the wishes and wants of Singaporeans can be, and are being, manipulated by the PAP to serve its own interests.

Help for Singaporeans so that they can be empowered to speak up against the suffocating grip of the PAP is not interference. Interference is when a foreign government supports one party over another as the British did with Mr Lee Kuan Yew and his wing in the PAP.

For the record, the SDP welcomes support for efforts to democratise Singapore. Beyond that we reject attempts to influence the policies of any political party by outsiders.

It is disappointing that the Chairman of the Workers’ Party cannot see this distinction but instead parrots what the PAP so disingenuously advocates.

Appeasing the PAP so that we can be an acceptable opposition is not to “draw a balance” as Ms Lim claims. It is rather an unfortunate tactic that will be conveniently exploited by the PAP.

The SDP said it before and we say it again: Singapore’s Opposition cannot stand up for the people on bended knees.

WORKERS’ Party chairman Sylvia Lim said Singapore is capable of dealing with rule of law issues on its own and does not need outside interference.

Ms Lim, a law lecturer, was a panellist at a Rule of Law Symposium that ended the week-long International Bar Association (IBA) conference.

She was making a point about checks on executive power when she observed that much as she desired political reforms, these have to be pushed within the boundaries of the law. The election outcome must be respected.

And while the IBA and other global conferences are useful for Singapore to measure itself against international benchmarks on issues like rule of law, no external help is needed, she indicated, saying:

‘We Singaporeans are quite capable of deciding what kind of country we want…I don’t think we need anyone outside to canvass our agenda for us.’

She had prefaced her speech by saying she wished to ‘draw a balance’ between the rule-of-law positions held by Deputy Prime Minister S. Jayakumar and Singapore Democratic Party politicians, who had questioned Singapore’s rule of law.

Like her, National University of Singapore law lecturer Simon Tay also touched on interference.

In his comments on the brightening prospects for the rule of law in South-east Asia, on the same panel, he said: ‘The international community has a very influential role.

‘But I think for Singaporeans and the region, if that influence turns to interference, it will be resented and resisted, not only by the Government and the state, but also really by many of the people.’

International standards or the international community is often ‘a code word for the US or the West’, he said, adding: ‘It will take time for Asians and others to put up their own normative ideas of what we think of as content of law.’

Nigerian lawyer Funmi Oluyede said that while rights are universal, cultures and traditions are different. ‘The mistake the West makes is in foisting what works in their society on ours.’

Mr Jayakumar during his speech repeated the tired and discredited argument that the rule of law needed to be “contextualised” to suit the needs of different cultures and societies.

He used the example of the much-criticised Internal Security Act to justify the Government’s crackdown on terrorists.

Dr Chee Soon Juan then rose to challenge Mr Jayakumar’s views. The SDP secretary-general asked why the minister did not tell the audience how opposition leaders were detained without trial. He cited the case of Mr Chia Thye Poh who was imprisoned under the ISA for 32 years.

He also pointed out that he was repeatedly sued for defamation and prosecuted for exercising his right to free speech.

The visibly nervous session chair, Mr Francis Neate, asked Dr Chee to wind up his intervention to which the SDP leader said that the IBA had promised him that there would be a meaningful discussion of the rule of law in Singapore during the symposium.

Dr Chee had no intention of paying $180 just to ask questions so that Mr Jaykumar could spew more propaganda.

“The Government has had its say. Now I’m sure the audience would like to hear the other side of the story,” Dr Chee said, turning to the audience which broke out into a loud and sustained applause.

Seeing this, Mr Neate retreated and allowed Dr Chee to continue.

When it came to Mr Jayakumar’s turn to respond, he evaded the questions and charges by resorting to the time-honoured PAP tactic of attacking the person, saying that Dr Chee was trying to turn the symposium into a theatre of Singapore politics.

There is a saying that it you cannot stand the heat, get out of the kitchen. In choosing to speak at the symposium which was opened to the public, surely the Minister should have been prepared to face questions about the Government’s authoritarian ways, especially at a forum entitled The Rule of Law.

The minister feigned hurt and gave the impression that he was responding to Dr Chee “out of respect to the Chairman and IBA delegates.” The truth is that the audience would not have it any other way.

And when he finished answering, no one applauded.

In fact, the Government had tried to prevent the symposium from being opened to the public. But it could not do so without inflicting more damage to its reputation.

Failing to stop the symposium from being opened to the public, the Government tried to get the foreign speakers to submit a written copy of their speeches. This apparently met with consternation from the some of the invited speakers.

US Supreme Court Justice Anthony Kennedy’s name was originally on the list but was taken off at the last minute.

This was just as well because, as with the other speakers, the subject of his speech would probably have been at variance with Mr Jayakumar’s. Mr Hisashi Owada, a Japanese judge with the International Court of Justice, reiterated that the rule of law should not be confused with the rule by law, a point repeatedly made by the Singapore Democrats.

Another speaker, Ms Ambiga Sreenevasam who was the president of the Malaysian Bar Council (MBC), described how the MBC had defended the independence of the judiciary from interference by the Executive by going to jail if necessary.

Mr Albie Sachs, a judge in South Africa, gave a moving speech that received a standing ovation. Describing his ordeal when he was detained without trial by the South African apartheid government even though he was white, Justice Sachs said that he had struggled with the blacks for equality.

With only a stump protruding from his right shoulder, the judge revealed how he survived a bomb attack that ripped off his right arm. He declared that the rule of law must be in place to protect human dignity, freedom and democracy.

During the breaks, many of the delegates congratulated Dr Chee for his intervention. One of them said: “We didn’t know that it was that bad. Frankly, I’m appalled that the IBA held the conference here.”

Another lawyer from Asia commented: “Your Government looked so bad in there. We all know what’s going on.”

A top government lawyer from Europe whispered: “Great speech! It was important.”

SINGAPORE (AFP) – Singapore’s legal system, praised by foreign investors for its efficiency, came under attack on Friday at an international lawyers’ conference for being repressive and silencing dissent.

Thousands of International Bar Association (IBA) delegates began meeting on Sunday in Singapore, a country that the group’s president, Fernando Pombo of Spain, said has an “outstanding judiciary.”

But Timothy Cooper, head of Washington-based human rights group Worldrights, challenged that notion. He questioned why political defendants in the city-state had never won libel suits brought against them by government officials.

He also asked why permits for gatherings “are routinely denied” to political opponents of the government – and received applause from hundreds of the conference attendees.

It is illegal to hold a public gathering of five or more people in Singapore without a permit, meaning demonstrations seldom occur.

Chee Soon Juan, one of a few to challenge the ruling People’s Action Party, also drew strong applause when he told delegates about his arrest and imprisonment six times, mainly for speaking in public without a permit.

Chee, secretary general of the Singapore Democratic Party, and another opposition figure, lawyer J.B. Jeyaretnam, were declared bankrupt in recent years after failing to pay libel damages to members of the ruling party – effectively barring them from holding public office under Singapore law.

Addressing the gathering, Deputy Prime Minister S. Jayakumar said that if Singapore’s leaders did not vigorously defend their reputations against those who questioned their integrity, “an insidious creeping effect” could lead people to believe the allegations.

He noted that London’s Financial Times had on Wednesday unreservedly apologised “for having published something which suggested nepotism” in Singapore.

Chee took a break from a five-day long solo protest over Singapore’s ties with military-run Myanmar to attend the IBA meeting. He said police told him his protest was illegal.

“I have no doubt that I’ll be charged and convicted again,” he said.

In his earlier speech, Jayakumar said Singapore’s legal system allowed the country’s different ethnic groups to live peacefully together, while international commerce thrived.

“Internationally our legal system and judiciary have been held in high esteem by the World Bank as an example of how a former British colony has been able to maintain its integrity and efficiency,” he said.

Singapore’s influential founding prime minister Lee Kuan Yew earlier told the conference that other international groups have also given top ratings to the city-state’s legal framework.

‘I want to thank the speakers…and Mr Jayakumar (left) for his very well-spun fairy tale’, Chee (right) said, and then proceeded to describe how he was sued for defamation and arrested several times for speaking without a permit. – PHOTO: ST

DEPUTY Prime Minister S Jayakumar on Friday accused Singapore Democratic Party’s Chee Soon Juan of turning an international meeting here into a theatre on Singapore politics, even as he responded to the opposition politician’s accusations of breaches in the law by the government.

And to a report detailing similar accusations, which SDP members distributed to delegates at the International Bar Association’s (IBA) symposium on the rule of law, Professor Jayakumar said it contained ‘half truths and complete untruths’.

He had opened the morning session at Suntec Convention Centre – the last major event of a week-long conference for about 4,000 legal practitioners from 120 countries – with a speech on how the rule of law is upheld in Singapore.

He was one of six speakers on the rule of law and the experience in Asia.

When the audience was invited to ask questions, Dr Chee took to the microphone.

‘I want to thank the speakers…and Mr Jayakumar for his very well-spun fairy tale’, he said, and then proceeded to describe how he was sued for defamation and arrested several times for speaking without a permit.

He claimed he had just come from a single person protest outside the Istana where he was approached by the police and told it was illegal.

‘Mr Jayakumar, will you tell the audience also when you talked about detention without trial, how members of the opposition were detained for 10, 20, 30 years?’ he said, naming other detainees like Chia Thye Poh and Francis Seow.

The session’s chairman, Mr Francis Neete, interrupted him at this point to let the minister respond, but Dr Chee said to let him finish what he wanted to say to the delegates.

‘I’m sure they would want to hear what the reality of Singapore is,’ he said, prompting applause from the audience.

Dr Chee then went on to say that he would gladly go to prison and remain bankrupt for the freedom of his country.

Quoting Myanmar pro-democracy leader Aung San Suu Kyi, he asked the delegates to ‘please use your liberty to help promote ours’.

Prof Jayakumar, who is also the Law Minister, replied that he would answer the question, ‘out of respect to the Chair, IBA and all the thousands of delegates who are attending’.

‘I say that because Mr Chee is a gentleman who vigorously campaigned for this conference to be cancelled and be boycotted.’

The DPM said he hoped that after spending six days here, the majority of the delegates would agree with the IBA’s decision to hold the conference here.

‘I would like or hope that the IBA proceedings do not get converted into a theatre of Singapore politics, because this is what Mr Chee Soon Juan is trying to do.’

‘He has the freedom of speech, but he has forgotten to tell some fundamental truths in many of the allegations that he has made both orally as well as in the publication that he has circulated.’

Referring to the eight-page report, he said: ‘If you want to persuade the members of the IBA, you have to tell them the complete truth.’

For example, the report gave the impression that in one court case, the Canadian courts had cast doubts on the integrity of Singapore courts.

‘But he doesn’t mention here that the courts in Canada from Supreme Court right up to the Ontario Court of Appeal threw out the allegation, and said that there is no reason to doubt the impartiality of the judges who heard the case in Singapore,’ said Professor Jayakumar.

The report also falsely claimed, he noted, that the Far Eastern Economic Review magazine was being banned here because it refused to apologise over a published interview with Dr Chee.

The session resumed after a break with a new panel of speakers, including National University of Singapore law professor Simon Tay, Workers’ Party chairman Sylvia Lim and Malaysian Bar Council Ambiga Sreenevasan.

At question time, more SDP leaders took to the microphone.

Dr Chee’s sister, Ms Chee Siok Chin, recounted how she was bankrupted as a result of defamation suits by Singapore’s leaders, and then asked how it came to be that the Malaysian Bar Council had no qualms speaking up about the rule of law in Malaysia.

SDP assistant secretary-general John Tan, who came after her, questioned the independence of the judiciary here.

Among the five other members of the audience who took to the microphone, was Mr M. Ravi, who introduced himself as a human rights lawyer who has defended opposition parties.

He defended the Chee siblings when they were sued by Minister Mentor Lee Kuan Yew and Prime Minister Lee Hsien Loong for defamation.

I first read this Lawyers’ Rights Watch Canada report here at SDP’s website. Click here for the PDF version which has footnotes. For those who maybe wondering – I did not simply do a cut & paste job. I read the full PDF version of the report. 😉

Do also read my post on the International Bar Association conference in Singapore which ends tomorrow, 19 Oct, with a rule of law symposium.

************

Prepared by Kelley Bryan with assistance from Gail Davidson and Margaret Stanier for Lawyers Rights Watch Canada. Kelley Bryan is a member of the Law Society of Upper Canada. Gail Davidson (ret) and Margaret Stanier are members of the Law Society of British Columbia

Rule of Law in Singapore: Independence of the Judiciary and the Legal Profession in Singapore

A. Introduction

To the casual observer, Singapore appears to be a cosmopolitan city-state with a functioning democracy based on the rule of law. After a century as a British colony, Singapore became self-governing in 1959 and gained full independence from Britain in 1965. As a former colony, it inherited a political system which includes a single chamber Parliament and a common law legal system which, since the Magna Carta, has enshrined the principles of the rule of law and an independent bar and judiciary. A legal system based on the rule of law “would not be possible without independent lawyers who are able to pursue their work freely and without fear of reprisals. Indeed, independent lawyers play a key role in defending human rights and fundamental freedoms at all times, a role which, together with that played by independent and impartial judges and prosecutors, is indispensable for ensuring that the rule of law prevails, and that individual rights are protected effectively.”

In Singapore, members of Parliament are elected every six years, with the leader of the majority party becoming the prime minister. The head of state is the president, an elected and largely ceremonial role, but with veto powers in selected areas, such as national reserves and the power to recommend clemency for people sentenced to capital punishment. Executive power is exercised by the government. The judiciary is nominally independent of the executive.

Many, however, question whether these are indicators of a healthy democracy free from oppression and authoritarianism, or whether they are merely symbolic trappings that mask deeper problems. In the 1959 elections, the People’s Action Party (PAP), led by Lee Kuan Yew, took power and formed the government. The PAP has won all eleven general elections since.

In fact, in nearly fifty years, the PAP has never won less than 95 percent of the parliamentary seats, and in recent years a large number of PAP candidates have run unopposed. Lee Kuan Yew’s son, Lee Hsien Loong, is currently prime minister pursuant to a transfer of power within the Lee family that took place in 2004.

After coming to power in 1959, the PAP secured the Singapore economy by establishing a predictable, seamless platform for foreign investors and markets. Singapore transformed itself into an economically prosperous, highly efficient market based on capitalist policies. The PAP, under an effectively one party system, was able to pass legislation and exercise executive power unopposed. Singapore typically scores high on the rule of law and control of corruption indicators on the World Bank’s worldwide governance indicators. Notably, though, the definition of the World Bank’s rule of law indicator focuses on the predictability of rules with respect to economic interactions, and importantly, the extent to which contractual and property rights are protected.

In contrast, Singapore’s scores on the World Bank’s voice and accountability indicators are strikingly low. In 2006, Singapore was ranked in the lowest 25th to 50th percentile amongst 212 countries, a category it shares with East Timor, Malaysia, the Philippines, Indonesia and Thailand. The voice and accountability indicators measure various aspects of the political process, civil liberties and political rights. These indicators reflect the extent to which citizens of a country are able to participate in the selection of governments. Also included in this category are measurements of the independence of the media, which serves an important role in monitoring those in authority and holding them accountable for their actions.

This paper discusses key aspects of the current state of the rule of law in Singapore: the ability of citizens to participate in the selection of governments; the independence of the judiciary; and independence of the bar and the ability of lawyers to advocate for their clients.

B. The Ability of Citizens to Participate in the Selection of Governments

As noted above, the PAP has controlled the Singapore government since independence in 1959.

This uninterrupted reign of power stems in part from the PAP’s transformative management of the country’s economy, but predominantly from the PAP’s concerted and thinly-veiled efforts to eliminate any political opposition. While voting procedures in Singapore are considered to be “fair and free from tampering,” the development of a robust political opposition has been hindered by limits on basic democratic freedoms and by the government’s control and use of the electoral process as an instrument for political dominance. As will be discussed below, the government also uses defamation suits and assignments in bankruptcy to disqualify members of opposition parties from running for office.

This practice has disentitled some, such as J.B. Jeyaretnam and Dr. Chee Soon Juan, and serves to discourage others from participating fully in public affairs and politics. In so doing, the PAP has handicapped a basic political right intrinsic to the rule of law: the right of citizens to change their government. While citizens are nominally able to elect representatives, elections are therefore less than free and fair.

Citizens of Singapore are entitled to universal suffrage at 21 years of age. Voting in general elections is compulsory, with penalties imposed (including being struck off the voters’ register) for those who fail to vote without excuse.

Use of defamation and bankruptcy laws to oppress political opposition

Singaporean defamation law makes one radical departure from its common law roots: it does not provide any privilege over statements made by politicians in the discharge of their public duty.

This legal gap has permitted the PAP to use defamation actions to stifle and punish criticism by opposition politicians. As a result of the lack of defences, members of the PAP have never lost a libel action or settled one without making money. Many commentators, including the Inter-Parliamentary Union and Amnesty International, have noted the chilling effect of such defamation suits on the freedom of political expression in Singapore.

Typically, the courts make damage awards in the hundreds of thousands of dollars in favour of the plaintiffs in political defamation cases. When the judgment debtor is unable to pay, the judgment creditor petitions the defendant into bankruptcy. Bankruptcy, in turn, has one significant outcome: Singaporean law prohibits a bankrupt from holding a seat in Parliament.

In this way, the twin swords of defamation and bankruptcy law effectively allow the PAP to silence and eliminate members of the opposition. Such was the case for Joshua Benjamin Jeyaretnam, lawyer, former Senior District Judge and Member of Parliament for the Workers’ Party. J.B. Jeyaretnam was twice disqualified from serving as a Member of Parliament through the use of court proceedings that have been discredited as resulting in significant injustice by the Privy Council, the International Commission of Jurists, the Inter-Parliamentary Union, Amnesty International, Lawyers’ Rights Watch Canada and others. Court proceedings were used to remove Mr. Jeyaretnam from parliament after his re-elections in 1984 and 1997.

J.B. Jeyaretnam was first elected as a Member of Parliament for the Workers Party in 1981, thereby becoming the first opposition candidate to be elected to parliament since independence. He was re-elected in 1984. J.B. Jeyaretnam was an articulate critic of PAP policies and programs. In the words of a British author, Richard Clutterbuck:

Jeyaretnam has been relentlessly harried by PAP members anxious to acquire merit, but he alone performs what is Parliament’s primary function in a democracy – the public cross-examination of Ministers.

Following his re-election in 1984, Mr. Jeyaretnam was charged with financial impropriety related to the collection of Workers Party funds. After an initial acquittal and a series of appeals, Mr. Jeyaretnam was found guilty and sentenced to a fine of S$5,000. The sentence, imposing a fine of over S$2,000, resulted in the automatic disqualification of Mr. Jeyaretnam as a Member of Parliament; the conviction triggered his disbarment from the Law Society. Mr. Jeyaretnam appealed his disbarment to England’s Privy Council, then the final court of appeal for Singapore. The Privy Council allowed the appeal and stated that Mr. Jeyaretnam had been “fined, imprisoned, and publicly disgraced for offences for which [he was] not guilty”. The Privy Council found that Mr. Jeyaretnam had been wrongly removed from Parliament and disbarred. The Privy Council directed the Law Society to reinstate Mr. Jeyaretnam and recommended that the Singapore government pardon him. In its reasons, the Privy Council stated:

Their Lordships have to record their deep disquiet that by a series of misjudgements the appellant and his co-accused Wong have suffered a grievous injustice. They have been fined, imprisoned and publicly disgraced for offences of which they were not guilty. The appellant, in addition, has been deprived of his seat in Parliament and disqualified for a year from practising his profession. Their Lordships order restores him to the roll of advocates and solicitors of the Supreme Court of Singapore, but, because of the course taken by the criminal proceedings, their Lordships have no power to right the other wrongs which the appellant and Wong have suffered. Their only prospect of redress, their Lordships understand, will be by way of petition for pardon to the President of the Republic of Singapore.

The Singapore government refused to follow the Privy Council’s recommendation to pardon Mr. Jeyaretnam and, soon afterwards, peremptorily abolished the right of the appeal to the Privy Council for all Singaporeans.

After discharging his debts, Mr. Jeyaretnam was reinstated as a lawyer and regained eligibility to stand for office in the 1997 general election. By virtue of the number of votes he won, he received a seat in Parliament. Shortly after this election, Senior Minister Lee Kwan Yew, Prime Minister Goh Chok Tong and other senior PAP members filed suits against Mr. Jeyaretnam alleging that a statement made in the course of his election campaign was defamatory. The alleged defamatory words of Mr. Jeyaretnam were: “Mr. Tang Liang Hong has just placed before me two reports he has made against, you know, Mr. Goh Chok Tong and his people.” Mr. Tang was a Workers Party candidate who had filed police reports alleging that Goh and others had defamed him by calling him ‘anti-Christian’ and a ‘Chinese chauvinist’.

As Mr. Jeyaretnam was concluding his rally speech, Mr. Tang placed copies of his police reports on the lectern and informed Mr. Jeyaretnam that the reports had been made. The only statement made by Mr. Jeyaretnam was the simple truth; that is, that the police reports had been filed. The Prime Minister was awarded S$600,000.00 for the publication of the same materials by Mr. Tang and sought a further S$200,000.00 plus costs against Mr. Jeyaretnam.

The trial of this defamation action was condemned by the International Commission of Jurists, which had sent an international observer, Stuart Littlemore, Q.C., to the hearings, as a “parody of justice”. This will be discussed in more detail in the section below respecting the independence of the judiciary.

Mr. Jeyaretnam was again sued for defamation relating to a 1995 article published in the Workers’ Party newspaper, which alleged that an event called the ‘Tamil Language Week’ was an ineffective means of advancing the Tamil language, and that a number of those involved were political opportunists beholden to the government. That article resulted in two libel suits against twelve defendants: A. Balakrishnan (the author of the article), Mr. Jeyaretnam (vicariously as editor of the newspaper), and other members of the Workers’ Party’s central committee. One of these lawsuits was brought by Minister of Foreign Affairs S. Jayakumar and four other PAP Parliamentarians; the other by Indra Krishnan and nine other members of the Tamil Language Week organizing committee, one of whom became a Member of Parliament for the PAP.

Damages and costs of S$510,000 were awarded jointly against all the defendants. Two of the plaintiffs subsequently commenced bankruptcy proceedings against Mr. Jeyaretnam alone and he was pronounced a bankrupt the day after he failed to pay one of the agreed-upon payments. The Court of Appeal confirmed the bankruptcy order in spite of Mr. Jeyaretnam’s offer to pay the remaining damages and he was automatically removed from Parliament in 2001.

In 2004, when Mr. Jeyaretnam became eligible for discharge from bankruptcy, the Assistant Registrar, High Court and finally the Court of Appeal refused his application for discharge. In so doing, the courts considered as the overriding factor the rights of the creditors to demand full payment and did not give due consideration to the bankrupt’s right to rehabilitation and the public interest in having Mr. Jeyaretnam discharged from bankruptcy so that he could return to his former role as a consistently elected member of the opposition. Only in 2007 has he been discharged from bankruptcy and regained his qualifications. As a result of the defamation actions and bankruptcy, Mr. Jeyaretnam was prevented from standing in the 2001 and 2006 general elections.

The case of J. B. Jeyaretnam illustrates the PAP’s use of the courts and the law to stifle and eliminate political opposition. Singaporean residents are thereby deprived of the benefit of having government policies tested in Parliament and in the public arena of free and open debate. As a result, the ability of Singaporeans to select their governments based on a free exchange of ideas, an essential component of the rule of law, is lacking.

Stringent limits on freedom of assembly

The Constitution of the Republic of Singapore provides the right to peaceful assembly but permits Parliament to impose restrictions “it considers necessary or expedient” in the interest of security, public order, or morality. The PAP has used this power to restrict freedom of assembly, with the manifest goal of hobbling the activities of opposition political parties. Public assemblies of five or more persons, including political meetings and rallies, require police permission; although in 2004 the government relaxed rules so that citizens no longer need permits for some indoor speaking events. As a result of the requirement for government pre-approval, spontaneous public gatherings or demonstrations are prohibited irrespective of their purpose.

The government also closely monitors political gatherings regardless of the number of persons present. During the International Monetary Fund and World Bank Joint Annual Meetings held in Singapore in September 2006, the government refused to issue permits for any public demonstrations. Accredited NGOs were allowed to protest in the lobby of the conference hall. On September 9, immigration officials asked three activists from People for the Ethical Treatment of Animals to leave the country for having planned to stage a public protest. On September 12, the government announced it would bar 27 individuals representing eight NGOs from entering the country to attend the conference. They were deemed a threat to security and public order. The decision was amended on September 15 to permit 22 of the 27 to enter the country. Then on September 16, police prevented Dr. Chee Soon Juan, prominent human rights campaigner and leader of the Singapore Democratic Party, from carrying out a protest march. After a ‘Freedom March’ on Human Rights Day, December 10, participants were threatened with prosecution.

Plain-clothes police officers routinely monitor political gatherings. In July 2005 the police attended and disrupted a gathering convened for the launch by Dr. Chee Soon Juan, of his book, The Power of Courage: Effecting Political Change in Singapore through Nonviolence. After his presentation, the police questioned Dr. Chee and confiscated for further investigation a video of peaceful protests by Hong Kong residents that had been projected as a backdrop to Dr. Chee’s presentation on his book. The police seized the video because Dr. Chee did not have a permit for public display of the video.

On September 30, 2007, Singapore police disrupted an event organized by Dr. Chee outside the Myanmar embassy to protest that country’s brutal crushing of the recent democratic uprising in Myanmar. Police indicated that the assembly was illegal and that the case was being investigated because more than five people gathered in order to sign the petitions, some of whom lingered after signing. In a media release, Singapore police called this action “…the latest by Chee in a series of similar incidents of staging illegal assemblies as acts of civil disobedience against the Singapore authorities.” Although Singapore, as the current chair of ASEAN, spoke out strongly against brutality in Myanmar, Singapore’s position has been cited as hypocritical given that extensive economic relations with Myanmar, which have thrown a lifeline to the junta to blunt economic and political sanctions from the United States, the European Union and other states. For example, according to Jane’s Intelligence Review (Dec. 1998), in 1998 Singapore supplied Myanmar with a purpose-built factory to manufacture assault rifles and ammunition.

On October 8, 2007, Dr. Chee was again arrested by Singapore police for alleged illegal assembly, at the start of a 24-hour vigil outside the main Singapore government offices. Their application for a permit for a vigil outside the Myanmar Embassy had been rejected. Singapore Democratic Party statement indicated that the vigil was aimed “at raising awareness of the Singapore government’s exploitation of the situation in Burma.”

Dr. Chee has been sued, fined and imprisoned on many occasions for his peaceful promotions of public debate on matters of public interest and for his promotion of human rights in Singapore.

In 1993, three months after contesting a by-election as a member of the Singapore Democratic Party, he was accused of misuse of funds and fired from his position neuro-psychology post at the university. Since then he has been fined, imprisoned and bankrupted as a result of a defamation suit brought by Lee Kwan Yew and Goh Chok Tong.

By use of these measures, as well as by blatantly manipulating electoral boundaries and establishing “block” votes to disqualify opposition members in some constituencies, the PAP has maintained its super-majority in Singapore’s Parliament since 1959. In the 2006 general elections, the PAP, led by Lee Kuan Yew’s son Lee Hsien Loong, won 82 of 84 seats. If, by continued use of defamation and bankruptcy actions and restrictions on freedom of assembly, Singaporean voters are deprived of access to a free and open political debate, then it is likely that the PAP’s dynasty will continue into the foreseeable future.

C. The Independence of the Judiciary

Judicial independence has been called “the lifeblood of constitutionalism in democratic societies”. Courts must be independent from “all other participants in the justice system”. As such, the essence of judicial independence is that the “relationship between the judiciary and other branches of government be depoliticized” (emphasis in original).

Judicial independence must be distinguished from judicial impartiality. Impartiality is the state of mind or attitude of a particular judge or tribunal in relation to the issues and parties in a particular case. Judicial independence is the status or relationship of the judicial branch to the other branches of government.

Judicial independence is comprised of both an individual and an institutional component. The individual dimension relates to the independence of the particular judge. The institutional dimension relates to the independence of the court on which the judge sits. An individual judge may exhibit the essential conditions of judicial independence but if the court over which he or she presides is not independent of the other branches of government, then he or she cannot be said to be an independent tribunal.

The principles of judicial independence are entrenched in international instruments including theUniversal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Basic Principles on the Independence of the Judiciary, and the Commonwealth (Latimer House) Principles on the Three Branches of Government. While Singapore has not ratified the International Covenant on Civil and Political Rights, the Latimer House Principles were endorsed by Commonwealth Heads of Government at their summit in Abuja, Nigeria, in December 2003. Article IV of the Principles states:

IV) Independence of the Judiciary

An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice. The function of the judiciary is to interpret and apply national constitutions and legislation, consistent with international human rights conventions and international law, to the extent permitted by the domestic law of each Commonwealth country.

To secure these aims:

(a) Judicial appointments should be made on the basis of clearly defined criteria and by a publicly declared process. The process should ensure: equality of opportunity for all who are eligible for judicial office;appointment on merit; and that appropriate consideration is given to the need for the progressive attainment of gender equity and the removal of other historic factors of discrimination;

(b) Arrangements for appropriate security of tenure and protection of levels of remuneration must be in place;

(c) Adequate resources should be provided for the judicial system to operate effectively without any undue constraints which may hamper the independence sought;

(d) Interaction, if any, between the executive and the judiciary should not compromise judicial independence. Judges should be subject to suspension or removal only for reasons of incapacity or misbehaviour that clearly renders them unfit to discharge their duties.

Court proceedings should, unless the law or overriding public interest otherwise dictates, be open to the public. Superior Court decisions should be published and accessible to the public and be given in a timely manner.

An independent, effective and competent legal profession is fundamental to the upholding of the rule of law and the independence of the judiciary.

The objective characteristics of judicial independence must include security of tenure, financial security and administrative independence. To ensure independence of the judiciary, judges’ term of office, independence, security, remuneration, conditions of service, pensions and age of retirement must be determined and adequately secured by law.

Objective components of judicial independence are absent in Singapore

These core objective characteristics of an independent judiciary are patently absent from Singaporean law. Singapore’s lower courts are Magistrate and District Courts that handle minor civil and criminal matters. Appeals from lower court decisions are brought to a single judge of the High Court sitting as a court of appeal. In more significant civil and criminal matters, cases are heard at first instance before a single judge of the High Court. Appeals are made to the Court of Appeal or Court of Criminal Appeal, composed of a panel of three High Court judges sitting in their appellate jurisdiction.

All Magistrate and District Court judges are civil servants. District Court judges are treated as members of the executive and routinely shuffled between, for instance, the Attorney General’s office and the bench. They have no guarantee of tenure.

Only fourteen persons have been appointed as High Court judges. These same ten judges sit as appeal judges in minor civil and criminal cases, as well as trial and appeal judges in important civil and criminal cases. Their individual independence is therefore crucial to the integrity of the judicial system.

At least half of the High Court judges have either no tenure or very limited tenure. For instance, two of the fourteen High Court judges are designated as Judicial Commissioners, a designation which amounts to a one- or two-year probationary term during which the government can review a new judge’s rulings before granting full tenure.

Even when granted, tenure is limited by the executive’s ability, through its control of the legislature and the office of the president, to remove judges with tenure. One striking example as the case of Senior District Judge Michael Khoo. Judge Khoo adjudicated at the trial level the financial impropriety charges against opposition Member of Parliament J. B. Jeyaretnam (discussed above). In 1983, Mr. Jeyaretnam, then the leader of the Workers’ Party, was charged with making a false statement about the Party’s accounts and fraudulently transferring Party funds to thwart creditors (creditors at that time included the PAP pursuant to a defamation action). The dispute centered on three donations, totaling S$2,600, which Mr. Jeyaretnam insisted, had not been given to the Party, but to which the government insisted the Party had title.

In January 1984, Judge Khoo acquitted Mr. Jeyaretnam of the false statement and fraud charges and convicted him of another count of fraud, for which he imposed a fine that was insufficient to cause Mr. Jeyaretnam to lose his seat in Parliament. Seven months later, Judge Khoo lost his judgeship and was transferred to the Attorney General’s office. He later left government service.

Although the government denied that the transfer was a reaction to the Jeyaretnam decision, Prime Minister Lee Kuan Yew suggested otherwise when during a Parliamentary debate in July 1986, he stated,

“…there was very good grounds why, if a person can make such a series of misfindings of fact and two misfindings of law in one simple case [referring to the Jeyaretnam case], he should be transferred to the Attorney-General’s Chambers.”

Another judge later imposed on Mr. Jeyaretnam a fine high enough, to result in Jeyaretnam’s disbarment from law and disqualification from Parliament. (This was the decision eventually overturned by the Privy Council, as discussed above.)

Confidence in the independence of the judiciary is lacking

In addition to legal safeguards, judicial independence depends upon the public perception that the objective components exist. The question is not only whether the court is free, but also whether the court is reasonably seen to be free to perform its adjudicative role without interference. The public’s perception respecting these components must be buttressed by a tradition of independence, the strength of which “is measured not only by its observance but also by the intensity of the reaction to its violation”.

The Singapore courts, when adjudicating commercial cases, which do not involve interests of PAP members or their associates, may be relied upon to administer justice according to the law. In this regard, Singapore judges have an overall international reputation for the integrity of their judgments. In cases involving PAP litigants or PAP interests, however, many see the Singapore judiciary as amenable to control by the will of the executive. In the case of J.B. Jeyaretnam, discussed above, the International Commission of Jurists released a report on its representative’s observations of the High Court in the trial of Lee Kuan Yew’s defamation action against Mr. Jeyaretnam relating to the ‘election rally’ remarks (discussed above).

The observer, Stuart Littlemore, Q.C., an Australian lawyer specializing in defamation, concluded that the most troubling aspect of the decision was the court’s “undue deference” to the plaintiff, then prime minister, Goh Chok Tong. Mr. Littlemore indicated that Mr. Goh “came to court as an ordinary citizen, not as prime minister, but it was impossible to escape the impression that the judge treated Mr. Goh as a litigant of higher status than he was entitled to”. The court found that the words spoken (“Mr. Tang Liang Hong has just placed before me two reports he has made against, you know, Mr. Goh Chok Tong and his people”) were defamatory – but on grounds of “lesser meaning imputation” which the plaintiff had not pleaded. Mr. Littlemore questioned whether this had been done to give the prime minister especially favourable treatment to avoid the embarrassment of losing his case. The trial judge also awarded aggravated damages to Mr. Goh on the basis that defence counsel’s cross-examination of Mr. Goh was “a baseless attack” which “aggravated the hurt caused to Mr. Goh”. Mr. Littlemore concluded that nowhere else in the common law world could it have been said that the cross-examination was anything but properly vigorous and relevant.

The principal role of an independent judiciary is to uphold the rule of law. If the judiciary is to exercise a truly impartial and independent adjudicative function, it must be allowed to be free of repercussions from such outside influences. As stated by one Canadian judge: “A society where people know their rights are guaranteed by fair laws which apply in the same way to all citizens equally, and are applied in an open and public way by an independent and impartial judiciary, is always a secure and stable society.”

If the rule of law is to flourish in Singapore, it will require the (so far absent) oversight of a truly independent judiciary free from outside influences.

D. The Ability of Lawyers to Advocate for their Clients

In Singapore, lawyers representing causes or clients unpopular with the PAP risk drastic repercussions, including criminal prosecutions, civil suits, detention, economic ruination, disbarment and loss of entitlement to run for public office.

A strong and independent legal profession is a fundamental aspect of the rule of law. If lawyers cannot advocate vigorously for their clients, free from intimidation, no matter what the issue, then the rule of law is unquestionably tainted.

This principle is emphasized in Part VIII of the Latimer House Guidelines For The Commonwealth, which provides in Article 3: “An independent, organized legal profession is an essential component in the protection of the rule of law.” To uphold the rule of law, lawyers must be free to stand between the state and the citizen and to criticize and call into question the actions of the state. According to Principle 16 of the United Nations Basic Principles on the Role of Lawyers:

Governments shall ensure that lawyers

(a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference;

(b) are able to travel and to consult with their clients freely both within their own country and abroad; and

(c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

Furthermore, “where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities”.

Detention

Singaporean history has shown that lawyers who advocate against government interests may face detention under Singapore’s draconian Internal Security Act (ISA). The ISA authorizes a police officer to detain any person whom he or she has “reason to believe… has acted or is about to act or is likely to act in any manner prejudicial to the security of Singapore.” A detainee can, on order of the Minister responsible for internal security, be detained for a period of up to two years. The Minister can also impose conditions on the detainee’s release, including curfews, restrictions on mobility and prohibitions against addressing public meetings or holding public office or taking part in any political activities. In addition, the President may direct that the detention be extended for “a further period or periods not exceeding two years at a time”.

The most striking example of detention as a mechanism of deterring free advocacy was a rash of ISA arrests instituted by the PAP in 1987-88. At that time, the so-called Operation Spectrum resulted in the detention, without trial, of 22 professionals, social activists, students, and Roman Catholic church workers, alleged to be plotting to violently overthrow the government and replace it with a Marxist state. One detainee was former lawyer Teo Soh Lung. In her career, she had been a founding member of the Law Society’s criminal legal aid programme. Prior to the time of her arrest in 1987, she was the legal counsel to an organization called the Geylang Catholic Centre for Foreign Workers, and her work for that organization included facilitating English language lessons and assisting Malaysian and Filipino workers in Singapore in claims for wages and damages for physical abuse. She was also a supporter of the opposition Workers’ Party and had tangled with Lee Kuan Yew in 1986 during a select committee hearing respecting the role of the Law Society. Ms. Teo was detained in the wave of arrests for the alleged “Marxist conspiracy” and held, without charge or trial, for more than two years. None of the detainees were ever charged with a crime or given any opportunity to challenge the government’s allegations against them. In fact, many of the detainees did not even know each other prior to their arrests.

Another example is the case of Singapore’s former solicitor general and member of the PAP inner circle, Francis Seow. After serving with distinction (including the receipt of the Public Administration Gold Medal) under Lee Kuan Yew, Mr. Seow left public service and entered into private law practice in 1972. In 1985, he was elected president of the Law Society. In that role, he first came to be labelled as an anti-government troublemaker when the Law Society, under his leadership, commented adversely on proposed amendments to legislation that would authorize the Singapore government to restrict the distribution of foreign publications which addressed Singaporean politics. Then in the crackdown in 1988, Mr. Seow was retained by two lawyers, Teo Soh Lung, and Patrick Seong, who were imprisoned under the 1988 Internal Security Act crackdown. Mr. Seow filed for habeas corpus on behalf of his clients. When he attended at the prison on May 6, 1988 to advise his clients that the hearing of the habeas corpus application had been adjourned, Mr. Seow was himself detained under the Internal Security Act. He was held in detention without any stated grounds, charge or trial, for 72 days and was released, subject to restrictions on his freedom of movement and association, as a result of pressure by international human rights organizations. Mr. Seow left Singapore and now lives in exile in the United States, where he became a Fellow based in the Department of Asian Studies at Harvard University.

Economic consequences

Even those lawyers who are not subjected to the more extreme form of backlash described above suffer less tangible but equally deterrent consequences in terms of the economic viability of their practices. Singaporean lawyer M. Ravi reports that he lost many of his commercial litigation and intellectual property clients after he argued a case in which he vigorously and publicly opposed the use of the death penalty for minor drug offences. M. Ravi found that his commercial clients could not run the risk of having a lawyer publicly advocating a position critical of government, especially in a country where the bench is so small that counsel’s notoriety is not easily forgotten.

In October 2006, a panel of three Singapore judges suspended M. Ravi from the practice of law for one year. M. Ravi was described by the Singapore Democrat as “the only lawyer in Singapore willing to take on cases with political overtones” and as bringing international attention to “the lack of the rule of law and the violation of human rights in the city-state.” Ravi has represented Singapore human rights advocate Dr. Chee Soon Juan on a number of occasions. Prior to his suspension he had represented Dr. Chee in a libel action brought by Prime Minister Lee Hsien Loong and Lee Kwan Yew.

The Singaporean public and business community does not have a perception of the government’s administrative neutrality. For instance, lawyers whose clients depend on the government for permits and licenses are wary of handling cases, which oppose the government in any form – an extraordinarily broad application of “soft” conflict principles. As one lawyer for a small commercial firm stated, “We would not handle political cases because it would affect our clients, which depend on the government for licenses and other things.” The former president of the Law Society has been quoted as saying that Singapore is “too small a place”, such that, “except for open political opponents, no one will touch such cases.” The cumulative result is that legal representation for clients or causes unpopular with the PAP is simply too expensive financially and professionally.

E. Conclusion

A number of factors amply demonstrate that Singapore is not governed by the rule of law.

These factors include: a demonstrated lack of independence of lawyers to stand between the state and citizens without fear of reprisals, inadequate statutory safeguards of the independence of the judiciary, a perception of executive influence over the judiciary in cases involving PAP interests, the stifling of public debate regarding issues of public importance through laws restricting freedom of assembly and freedom of expression to a degree incompatible with democracy, the threat of arbitrary arrest and detention through use of the ISA, and, the use, by members of the executive and the PAP, of defamation suits to punish and incapacitate government critics and members of opposition parties.

Indicated as curative measures are: ratification by Singapore, of the International Covenant on Civil and Political Rights and enactment of the law reforms required to bring domestic legislation into compliance with the ICCPR and also with international standards safeguarding the independence of the judiciary and that of lawyers, protecting freedom of expression and freedom of assembly and preventing arbitrary detention.

I think this is the case in the great majority of authoritarian states:
on the surface, because of repression, everything seems frozen,
but when the sun comes out and the ice melts, you find that there
was a lot of life underneath all along. ~ Aung San Suu Kyi